The Use of Public Inquiries in Rooting Out Corruption and Collusion – The Canadian Experience

Abstract

A public commission of inquiry is an administrative tool used exceptionally by governments to inquire into and report on controversies of significant public importance. Such inquiries allow the public to better understand the complexities of a scandal or tragedy, but provide no ultimate accountability when criminal activity is at play. In Canada, the use of public commissions of inquiry to investigate corruption and collusion poses significant legal challenges from a constitutional division of powers perspective (between the federal and provincial levels of government) and with regards to the protection of the rights of the accused under the Canadian Charter of Rights and Freedoms. Typically, when criminal conduct is at the heart of the controversy, governments will wait for the completion of all investigations and prosecutions before launching a public inquiry into any remaining matter of public importance. However, the scale of a corruption scandal and the growing public demand for answers may be such that a government is left with no option but to launch a public inquiry immediately, even if there are serious risks of compromising criminal investigations and prosecutions. This paper discusses the legal difficulties associated with the creation and operation of public commission of inquiry into crime, corruption and collusion in particular, and presents a way forward in analysing the various measures that may be adopted at the onset and susbsequently at the operational level to minimize legal risks.